Demise of FOIA "High 2" exemption debated

With the 10th anniversary of the 9/11 attacks nearing, academics, government officials and other leading authorities on information policy gathered yesterday at American University's Washington College of Law to discuss current efforts and challenges in protecting homeland security information. The event was coordinated by the college's Collaboration on Government Secrecy, a project dedicated to studying government openness and secrecy.

Much of the discussion centered around the U.S. Supreme Court's March decision in Milner v. Department of the Navy in which the Court rejected the "High 2" interpretation of Exemption 2 to the federal Freedom of Information Act. Exemption 2 to the FOIA states that agencies may withhold from disclosure records "related solely to the internal personnel rules and practices of an agency." The "High 2" interpretation of this language gave the exemption a broader meaning and allowed the government to withhold records that were "predominantly internal" whose disclosure would significantly risk circumvention of the law.

"High 2" had been increasingly invoked by the government post-9/11 as a justification to withhold information regarding critical infrastructure, government buildings and U.S. ports, as it was argued that disclosing any such information would aid those seeking to harm U.S. citizens and interests. Daniel Metcalfe, executive director of the Collaboration on Government Secrecy, began the event by noting that 9/11 had an enormous impact on government information policy and that the Milner decision was a critical plot point in legal and policy development going forward.

While there was disagreement among some participants as to whether the High Court decided Milner correctly, there appeared to be near-universal agreement among those directly commenting on Milner that legislation should be enacted to protect certain classes of documents that the government can no longer arguably keep secret under FOIA.

Joe Whitley, former general counsel at the Department of Homeland Security, discussed the agency's historic challenges in promoting transparency and openness, while at the same time fulfilling its duty to protect Americans. He described the Milner decision as an "evisceration of an important" exemption. He said he supported Justice Stephen Breyer's dissent in the case and said it would have been better to "let sleeping laws lie."

Whitley suggested that other FOIA exemptions and statutory exemptions to FOIA found in the Homeland Security Act may help temper Milner's effect, but Congress should nonetheless craft "remedial" legislation to help maintain security. Whitley said he believes a level of complacency has perhaps set in since the 9/11 attacks.

Whitley's call for a congressional "fix" was echoed by William Holzerland, the Department of Homeland Security's associate director for disclosure policy and FOIA development. Holzerland remarked that the department was troubled by the Milner decision. "Concerned is a great way to put it," Holzerland said, noting that "High 2" was the second-most frequently used exemption in the department. According to DHS annual FOIA report data for fiscal year 2010, of the approximately 80,000 records requests in which the agency cited a particular FOIA exemption when either partially or fully denying a request, Exemption 2 was cited approximately 54,000 times.

Holzerland also said he believes certain statutory exemptions could be used to protect information regarding sensitive security information, such as Transportation Security Administration screening procedures, but worried there could also be a hastened rush to retroactively classify vast amounts of information left potentially exposed by Milner. Holzerland said he would rather see a narrowly-tailored congressional fix enacted swiftly.

Others questioned the practicality of classification as a solution. Anthony Yang, who argued the Milner case before the Supreme Court on behalf of the government, said he believes that often critical security information needs to be shared with local emergency first responders and that classifying the information may prevent such sharing. Yang also acknowledged that, while he did not believe the "High 2" reading was necessarily broad or undue, the case presented a challenge for the government from a textual standpoint given the language of the exemption.

University of Maryland Law Professor Michael Greenberger agreed with the Court's rejection of "High 2" as a textual matter, but noted that the court was extremely sensitive to having the information that was exempted by "High 2" released. Greenberger noted that Justice Elena Kagan's opinion, along with Justice Samuel Alito's concurrence, seemed to provide a roadmap to the government on how to keep sensitive security information secret absent the "High 2" exemption.

American University Law Professor Jeffrey Lubbers also said he agrees with the Court's decision, but suggested amendments to FOIA to protect "High 2" security-related information. "Maybe we need an Exemption 10," Lubbers remarked.

Metcalfe also said he hopes Congress amends FOIA before any sensitive information is released to the public, noting that many agencies, such as the Department of Agriculture, may not have the benefit the Department of Homeland Security has of relying on statutory exemptions to FOIA.

University of Cincinnati Law Professor James O'Reilly said he expected to see a variety of specific Exemption 3 statutory exemptions proposed in Milner's wake. He said he viewed any major FOIA amendment proposals as a potential political "hot potato" in the coming presidential campaign and, should that process begin, the government may see a push by transparency advocates to revise and limit other exemptions, such as 8 and 9, and the broad personal privacy protections read into 7(C).

O'Reilly proposed a targeted "High 2" fix that would not be a blanket cover for all potential information related to security at every location across the country. Rather, he proposed a narrow exemption that would be applied to objective data records regarding "site specific" targets where federal or state officials could provide detailed affidavits attesting to the potential for an attack at that specific location, be it a utility, commercial enterprise or government-owned facility.